Turner v Turner [2008] EWCA Civ 280

Application for permission to appeal by husband an order from a circuit judge which the appellant claimed is frustrating his statutory right to appeal. Application refused.

The application arose following ancillary relief proceedings in which a district judge made an order that required a charge to be executed by the husband. That was in 2004. Leave was given concerning the timing and implementation of the order. Three years later the order had still not been executed so the district judge, of his own motion, drafted an order that required execution within 28 days.

The husband appealed the order to the circuit judge who further ordered that the matter should be reheard by the district judge. The husband then made this application to the Court of Appeal on the grounds that the circuit judge had denied him his statutory right to an appeal.

In this judgment Wall LJ rejected that argument, which on the face of it was persuasive, on the grounds that the circuit judge was exercising her case management duties to manage the case justly under Rule 2.51D of the Family Proceedings Rules 1991. In the circumstances the appellant should first obtain an order that could be appealed in the normal way if still deficient.

Lord Justice Wall:1. This is an application made by Mr Philip Turner for permission to appeal against an order made by HHJ Hammerton sitting in the Dartford County Court on 8 January 2008.

2. The question before me arises out of what were ancillary relief proceedings, now concluded a long time ago -- back in November 2004 -- in which a district judge (District Judge Glover) made an order in what, on the face of it, are fairly conventional terms, namely that the former matrimonial home of the parties should be transferred to the wife, but that the husband should have a charge of 30% in relation to the ultimate process of sale, there being a deferment of the sale – once again, on fairly non-conventional terms. The husband was ordered to make nominal periodic payments to the wife in the sum of a penny a year; otherwise there was effectively a clean break.

3. Liberty was given to apply as to the implementation and timing of the order and it is, I think, most unfortunate that more than three years later the question of the form of the charge has not finally been resolved. What happened is that the district judge of his own motion and, it would appear, after correspondence, made an order, on 8 November of last year, that the charge was to be executed in a form which he had approved and which he had previously sent to the parties. Mr Turner was ordered to execute it within twenty-eight days of service and an application which Mr Turner had made to the court was stayed until further order. That application is in my papers at page 37 of the bundle and in it Mr Turner asks for the charge to be implemented in a manner different to that which had been settled, agreed, or approved by the district judge; and Mr Turner in that document advances four grounds as to why the draft, in the form approved by the district judge, was unsatisfactory. As I say, on 8 November the district judge, without a hearing and simply on reading the documentation, made an order of his own initiative that the draft was to be approved in the form previously sent out..

4. Mr Turner thereupon sought to exercise his right of appeal and he appealed to the circuit judge. His notice of appeal is in the bundle which I have to the front of me. Mr Turner seeks to complain about what the circuit judge did with his notice of appeal. She also did not have a hearing. She read the application by Mr Turner dated 11 November 2007 and her order reads as follows:

"Upon reading the court file

And upon it appearing that the decision of District Judge Glover dated 8th November 2007 was made of the court's own initiative and in the absence of the parties and that in the circumstances the matter should be further considered by District Judge Glover by way of a hearing

IT IS ORDERED THAT

1. The Respondent's appellant's notice do stand as an application for a rehearing of the order made by District Judge Glover on 8th November 2007 and shall be listed for hearing by him on 28th January 2008 at 14.00pm at Dartford County Court [the address is given].

2. The time limits for filing a notice of application for rehearing are abridged

3. The application be referred to District Judge Glover for the purpose of making further directions including an estimate of time required for the rehearing."

5. Mr Turner seeks permission to appeal to this court against that order. His first ground is that the judge had no jurisdiction to order his appellant's notice to stand as an application for rehearing by the district judge. His case has, as always, been argued persuasively by Dr Pelling this morning. Dr Pelling says that Mr Turner had a statutory right under rule 8.1 of the Family Proceedings Rules to appeal from a district judge to the circuit judge. That statutory right cannot be interfered with by the judge in the way that she purported to do, and that in the circumstances she was plainly wrong - indeed had no jurisdiction - to do what she did.

6. Furthermore and by way of secondary submission, Dr Pelling argues that there is really no point in going back to the district judge because the district judge has made up his mind. Indeed, the district judge had himself effectively directed that, if Mr Turner was not satisfied with the document he had produced -- that is, the document the district judge had approved - he should either execute the charge or enter an appeal against the order. So, Mr Turner argues through Dr Pelling that what he was essentially doing was obeying the directions of the district judge and seeking to appeal on the basis that Mr. Turner did indeed disapprove of the form of the charge.

7. In these circumstances, Dr Pelling argues that there is an arguable point which I should put before the full court. He also persuasively argues that it would be helpful and to the public benefit if this court could give some form of guidance to the county courts to stop them interfering in what Dr Pelling describes as a litigant's statutory rights of appeal. He points out that there is at present no permission requirement for appeals from district judges to circuit judges and that if, as here, Mr Turner was exercising his statutory rights he should be allowed to do so and there should be no interference with them..

8. I have, of course, considered that argument carefully, and on its face it is a powerful one. However, it does seem to me that it takes no account of the overriding objective under Rule 2.51D of the Family Proceedings Rules 1991 as amended. Sub-paragraph 1 under that rule states that the ancillary relief rules are a procedural code with the overriding objective of enabling the court to deal with cases justly. Paragraph (2) provides that dealing with cases justly includes a number of factors, all of which are made very familiar, which I need not read out. Paragraph (3) says in terms:

"The court must seek to give effect to the overriding objective when it --

a) exercises any power given to it by the [ancillary relief] Rules or b) interprets any rule..."

Sub-paragraph (4) says:

"The parties are required to help the court to further the overriding objective.

The court must further the overriding objective by actively managing the cases."

In sub-paragraph (6) a list is given of what active case management includes, which once again I do not think I need to read out.

9. So we have a dilemma here, and really I think it can be quite summarised fairly in the following way. Was the judge acting without jurisdiction to deprive Mr Turner of his statutory right of appeal (Dr Pelling's case) or was she exercising her powers under the overriding objection by way of case management, to say that what should have happened in this case?

10. In my judgment, what should have happened in this case, was that the district judge should have held a hearing, which would have resulted in an order after hearing both sides. That would have resulted in an order which Mr Turner could then have appealed in the normal way to the circuit judge.

11. Despite Dr Pelling's persuasive advocacy, I am of the clear view that the circuit judge was exercising the powers given to her under the overriding objective and that she was entitled to do so. She may have been right or wrong. The question for this court is whether it is arguable that she was exercising her powers in a way that was not open to her.

12. In my judgment it was plainly open to her under the overriding objective to take the course that she did. She was right, in my view, to take the position that the district judge should have had a hearing, should have dealt with the matter after an oral hearing, in which case she would have then been able to entertain an appeal.

13. Dr Pelling's argument has ranged, as one would expect, quite widely and it is common ground, I think, that a litigant in Mr Turner's position does effectively have a choice: he can either go back to the court that has made an order without notice, or he can appeal. He has sought to appeal; and he has exercised his right to appeal. In my judgment the circuit judge is not depriving him of his right of appeal. All she is saying is that he should first obtain a ruling on notice – on an inter partes basis from the district judge; and that that would give him something which he could then appeal to her in the normal way.

14. The practical choices for this court are either to give permission today, which would result in a further hearing and then a remission either to the circuit judge or to the district judge; or to refuse permission, in which case Mr Turner would be left to his remedies to go back to the district judge, and if the district judge retains his current position then he will have to appeal.

15. However, in my view the question I have to answer is whether or not the circuit judge arguably was acting in breach of her jurisdiction and for the reasons I have given I do not think that she was. I would say to the district judge – as no doubt Dr Pelling will say to the district judge when the matter goes back before him as it now will - that he is carefully to reconsider the draft, and if he remains of the view that the draft he has approved is the appropriate one, then he should give his reasons for so doing, so that Mr Turner can, if necessary, take the matter to the judge on appeal. I myself think that that is the more appropriate and more proportionate way of dealing with the case.

16. I do not remotely criticise Dr Pelling for advising Mr Turner to come to this court. It is, at bottom, an interesting point but it is one in respect of which, in my judgment, there would be no reasonable prospect of success on appeal to this court, and therefore the application, interesting as it is, will be refused.